JUSTICE PLEICONES: Walker Scott Russell (“Scott”)
and Mildred Neiman (“Mim”), collectively “Appellants”, each filed Summons and
Complaints in the Spartanburg County Probate Court seeking to set aside the
Last Will and Testament of their father, Donald S. Russell, Sr. (“Testator”),
and seeking to set aside the Revocable Trust and Irrevocable Trust of Testator.
Appellants contend both the will and the trust instruments resulted from undue
influence exerted on Testator. Wachovia Bank (“Wachovia”), Executor of Testator’s
estate and trustee of both trusts, as well as the other Defendants, moved for
summary judgment, which was granted. These appeals followed.
[1] We affirm as modified.

FACTS

Testator was married to Virginia U. Russell (“Mrs.
Russell”) and they had four children, Donald Russell, Jr. (“Donnie”), Mim, John
Russell (“Johnny”) and Scott. Mim married Thad Williams (“Thad”) and had three
children, Russell Williams (“Russell”), Virginia Williams (“Virginia”) and Cecilia
Williams (“Cecilia”), collectively “The Williams Children.” Mim and Thad divorced,
and Mim married Leonard Neiman in June of 1997.

Testator served as an active United States Circuit Judge for the Fourth Circuit
until his death on February 22, 1998, at the age of 92. Prior to his appointment
to the federal bench, Testator served as a governor of and United States senator
from South Carolina, as well as President of the University of South Carolina.
Testator’s physical condition deteriorated in his later years, and he was occasionally
hospitalized.

The Williams Children lived with Testator and his wife for most of their lives.
Cecilia lived in the home until Testator’s death, while Russell and Virginia
resided in the home intermittently.

Testator executed many
wills, codicils, and trusts beginning in 1959. His final will and trusts
were executed on February 27, 1996, with codicils executed on May 15, 1996,
November 6, 1996, October 9, 1997, and November 6, 1997. The last codicil was
executed on February 20, 1998, just two days before his death. Testator’s estate
totaled 33 million dollars.

Testator’s final estate plan provided that his estate be held in trust for
Mrs. Russell for her lifetime, and at her death the trust property be distributed
as follows:

(1)

$750,000 to Scott in trust for life, if he is not living then
to Scott’s spouse and descendants then living, also in trust.

(2)

One-third of the balance to Donnie.

(3)

One-third of the balance to Johnny.

(4)

The remaining one-third of the balance to Mim and her three
children, the Williams Children, as follows:

a.

One-fourth to Mim in trust for life, and then to
the Williams Children in trust for life.

b.

One-fourth to Virginia in trust for life.

c.

One-fourth to Cecilia in trust for life.

d.

One fourth to Russell in trust for
life.

Mim is to receive only the income from her trust, but the trustee has the discretion
to distribute principal. At Mim’s death, the property remaining in the trust
shall be divided per stirpes into trusts for Mim’s descendants living at the
time of her death. The Williams Children receive distributions of principal
and income at the sole discretion of the trustee. The Williams Children are
to have a power of appointment over their trusts through their wills, and cannot
appoint the trust property to their estates or to creditors. If the Williams
Children do not exercise their powers of appointment, their shares are divided
per stirpes into trusts for their descendants living at the time of their death.

Appellants contend that the trial court erred in granting summary judgment
against them. Since our standard of review requires we review the evidence
in the light most favorable to Appellants, Fleming v. Rose, 350 S.C.
488, 567 S.E.2d 857 (2002), we recount from the record the evidence supporting
their claims of undue influence by the Williams Children and their father Thad.

Appellants presented evidence, that at times, Testator was confused. One incident
in 1997, detailed by several nurses employed by Testator, involved Testator
thinking that he was in Richmond, Virginia, when in fact he was in Spartanburg,
South Carolina. The nurses also stated that Testator “doubled up” on his medication,
which caused them to regulate the medication Testator took, and put a lock on
the medicine cabinet.

There was evidence that the Williams Children were disrespectful to Testator,
and frequently yelled at Testator about money. The Williams Children engaged
in physical fights in front of Testator. There was evidence that Cecilia monitored
Testator’s telephone calls while he was in his home, and sometimes told Testator
which clothes to wear. Cecilia would not allow Testator to regulate the thermostat
in his house.

The Williams Children spent large amounts of Testator’s money, sometimes charging
as much as $12,000 in a month. The Williams Children had unfettered access
to Testator’s office, and lived in his house. There was evidence that Thad [2] had frequent contact with Testator’s attorney
regarding the estate plans. Two medical doctors testified that Testator could
have been susceptible to undue influence. Finally, there was evidence that
Russell and Cecilia removed records from Testator’s office on the weekend of
his death. [3]

There is, however, undisputed evidence that the Testator was mentally competent
and worked until the day he died. Testator drove himself to work every day.
At the direction of Testator, his secretary, not the Williams Children or Thad,
handled Testator’s financial transactions. Testator frequently attended social
engagements with Donnie and Johnny, as well as other friends and colleagues.
There is also undisputed evidence that Mim has not provided for her own children,
the Williams Children, in her estate plan. Finally, Testator met with his attorney
alone on most occasions, and neither the Williams Children, nor Thad were present
at the signing of the will, trust documents or codicils.

ISSUES

Did the trial judge err in granting summary judgment because a genuine issue
of material fact existed concerning the exercise of undue influence over the
Testator in the execution of his will?

Did the trial judge err in failing to make a specific ruling that North Carolina
law governed the validity vel non of the trust documents?

Did the trial judge err in granting summary judgment because a genuine issue
of material fact existed concerning the validity of Testator’s trusts due to
undue influence or lack of trust res?

DISCUSSION

I. Will Contest

Appellants argue that Testator’s entire estate plan is void ab initio
due to undue influence exerted by the Williams Children as well as by Thad Williams,
their father, and that summary judgment was inappropriate as there was a genuine
issue of material fact. We disagree.

All parties stipulate that South Carolina law governs the will contest. For
a will to be invalidated for undue influence, the influence must be the kind
of mental coercion which destroys the free agency of the creator and constrains
him to do things which are against his free will, and that he would not have
done if he had been left to his own judgment and volition. Last Will and
Testament of Smoak v. Smoak, 286 S.C. 419, 334 S.E.2d 806 (1985). Undue
influence must be shown by unmistakable and convincing evidence, which is usually
circumstantial. Id. The evidence must show that the free will of the
testator was taken over by someone acting on testator’s behalf. Id.
Undue influence is demonstrated where the will of the influencer is substituted
for the will of the maker. Id.

Generally, in cases where a will has been set aside for undue influence, there
has been evidence either of threats, force, and/or restricted visitation, or
of an existing fiduciary relationship. Hembree v. Estate of Hembree,
311 S.C. 192, 428 S.E.2d 3 (Ct. App. 1993). The “mere existence of influence
is not enough to vitiate a Will…A mere showing of opportunity and even a showing
of motive to exercise undue influence does not justify a submission of that
issue to a jury, unless there is additional evidence that such influence was
actually utilized.” Last Will and Testament of Smoak, supra,
at 424, 334 S.E.2d at 809. Where the testator has an unhampered opportunity
to revoke a will or codicil subsequent to the operation of undue influence upon
him, but does not change it, the court as a general rule considers the effect
of undue influence destroyed. Smith v. Whetstone, 209 S.C. 78, 39 S.E.2d
127 (1946), as quoted in Estate of Cumbee,supra.

Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Rule 56(c), SCRCP. When
reviewing a summary judgment order, an appellate court applies the same standard
as the trial court. Fleming v. Rose, 350 S.C. 488, 567 S.E.2d 857 (2002).
“The evidence, and all reasonable inferences must be viewed in the light most
favorable to the non-moving party.” Id. at 494, 567 S.E.2d at 860. Since
the standard of proof in an undue influence case is unmistakable and convincing
evidence, there must be more than a scintilla of evidence in order to defeat
a motion for summary judgment. Id. A heightened standard for summary
judgment is required where “the inquiry involved in a ruling on a motion for
summary judgment…necessarily implicates the substantive evidentiary standard
of proof that would apply at a trial on the merits.” George v. Fabri,
345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001) quoting Anderson v. Liberty
Lobby, Inc. 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Taking the facts in the light most favorable to the Appellants,
we agree with the trial judge that there is no genuine issue of material fact
to preclude the grant of summary judgment as to the validity of the will. Appellants
have not presented unmistakable and convincing evidence that the Williams Children
or Thad utilized their relationship with Testator to substitute their will for
his. The evidence presented points to the conclusion that the Williams Children
were churlish, spoiled children, who took advantage of Testator’s generosity.
While unattractive, such conduct and demeanor does not amount to undue influence.

In previous cases, this Court has found no undue influence
existed where the evidence was similar in degree to that presented by Appellants.
See, e.g., Calhoun v. Calhoun, 277 S.C. 527, 290 S.E.2d
415 (1982) (Testator was confined to a nursing home, in feeble physical condition,
yet continued to conduct business affairs three years after the signing of the
will. Beneficiary drove testator to the attorney’s office, but was not present
at the signing of the will. Case should not have gone to the jury because no
undue influence.); Last Will and Testament of Smoak, supra, (Testator
was bedridden, and beneficiary’s attorney drafted the will. Directed verdict
should have been granted because no evidence of undue influence.);
[4] First Citizens Bank v. Inman, 296 S.C. 8, 370 S.E.2d 99 (1988)
(Testator was in reasonably good health, worked in her yard, spoke with her
neighbors and did some cooking. Testator “exhibited a pattern of changing her
will over the years…she went through a consistent procedure of talking with
her lawyer…it appears she was the ultimate decision maker.” Directed verdict
was proper.)

Where undue influence has been found, the facts have been
far more egregious than those in this situation. See, Estate of Cumbee,
supra (Testator’s conversations were monitored by beneficiaries through
a baby monitor, and testator developed hand signals to communicate with her
visitors. The beneficiary controlled the testator’s finances, and gave the
directions for the new will to the attorney, picked up the will, and had the
will executed in the home of the beneficiary.); Byrd v. Byrd, 279 S.C.
425, 308 S.E.2d 788 (1983) (Testator was infirm, both physically and mentally,
prior to and contemporaneously with the execution of the will. The beneficiary
threatened to send the testator to a nursing home, and visitation was severely
restricted by the beneficiary. The will was voided for undue influence.)

Here, it is undisputed that Testator was independent, and physically mobile
until a few days before his death. Testator, while elderly, was not infirm,
mentally or physically, and was not prevented from seeing relatives, friends
or business associates.

In order for the will to be void due to undue influence, “[a] contestant must
show that the influence was brought directly to bear upon the testamentary act.”
Mock v. Dowling, 266 S.C. 274, 277, 222 S.E.2d 773, 774 (1976). The
record is devoid of any evidence that the Williams Children or Thad influenced
the execution or any modification of the will. Neither the Williams Children
nor Thad were present when the contents were discussed, or when the will was
executed. The circumstances surrounding the will indicate the will was the
product of the free and unfettered act of Testator.

Appellants argue that two expert witnesses, both medical doctors, testified
that Testator was subject to undue influence, and that this testimony is enough
to withstand summary judgment. We disagree. Neither of the experts examined
the Testator. Both experts testified that Testator was competent to execute
a will. Absent examination of Testator by the expert, or an opinion that Testator
was mentally incompetent and therefore more susceptible to undue influence,
we fail to see how expert medical testimony can be probative as to undue influence.
Further, neither expert based his opinion on the circumstances surrounding the
execution of the Will, which is the critical issue when evaluating an undue
influence case. “Had his expert testimony related to mental capacity it might
have properly been considered on that issue.” Smoak v. Smoak, 286 S.C.
419, 427, 334 S.E.2d 806, 810 (1985). The doctors’ testimony here did not,
and therefore does not preclude summary judgment.

Testator had numerous opportunities to change the will after executing it in
1996. In fact, Testator did amend his estate plan multiple times. The undisputed
evidence to the effect that Testator drove his own car, worked, and met alone
with his attorney [5] while executing
the will, is evidence of the “unhampered opportunity” to change his will, which
negates any undue influence evidence that the Appellants put forth. Smith
v. Whetstone, supra.

When opposing a summary judgment motion, the nonmoving party must do more than
“simply show that there is a metaphysical doubt as to the material facts but
must come forward with ‘specific facts showing that there is a genuine issue
for trial.’” Baughman v. American Telephone & Telegraph Co., 306
S.C. 101, 107, 410 S.E.2d 537, 545 (1991). Where a verdict is not “reasonably
possible under the facts presented, summary judgment is proper.” Bloom
v. Ravoira, 339 S.C. 417, 529 S.E.2d 710 (2000) (emphasis added). In this
case, the trial judge properly granted summary judgment on the undue influence
claim relating to the will. A judgment for Appellants was not reasonably possible
under the facts presented when measured against the level of unmistakable and
convincing proof.

II. North Carolina Law

Appellants argue that North Carolina law applies to
the trust documents. We agree. The trust documents specifically provide for
the application of North Carolina law. Both trusts state, “[t]he situs of this
trust shall be the State of North Carolina, and the administration and construction
of the trust, and the rights of the beneficiaries hereof, shall be governed
by the laws of the State of North Carolina.” As to interests in personal property
held in testamentary or living trusts, a testator may designate the local law
to govern the validity of the trust unless application of the designated law
would be contrary to public policy of the state of testator’s domicile at death.
Restatement (Second) of Conflict of Laws §§ 268-270 (1971). See also
George Gleason Bogert, Trusts and Trustees, § 301, § 332 (2d ed., West
1979). Cf. S.C. Code Ann. § 62-7-202 (1987) (suggests the settlor can
designate in the trust instrument the principal place of administration of the
trust). Further, the designated state must have a substantial relation to the
trust. Restatement (Second) of Conflict of Laws §§ 268-270. “A state
has a substantial relation to the trust when it is the state, if any, which
the settlor designated as that in which the trust is to be administered, or
that of the place of business or domicil of the trustee at the time of the creation
of the trust, or that of the location of the trust assets at that time, or that
of the domicil of the settlor, at that time, or that of the domicil of beneficiaries.
There may be other contacts which will likewise suffice.” Restatement (Second)
of Conflict of Laws §270 cmt. b.

In this case, the Testator
[6] designated that North Carolina law should apply, and the trustee as
well as the trust property are located in North Carolina. There is a substantial
relationship between the trust and North Carolina. We hold that a settlor may
designate the law governing his trust, and absent a strong public policy reason,
or lack of substantial relation to the trust, the choice of law provision will
be honored. North Carolina law applies to Testator’s trusts.

III. Trust Contest

A. Undue Influence

Appellants argue that the trusts are invalid due to undue
influence by the Williams Children and/or Thad. Under North Carolina law, which
is similar to South Carolina law, undue influence requires that:

there must be something operating upon the mind of the person
whose act is called in judgment, of sufficient controlling effect to destroy
the free agency and to render the instrument, brought into question, not properly
an expression of the wishes of the maker, but rather the expression of the will
of another. It is the substitution of the mind of the person exercising the
influence for the mind of the testator, causing him to make a will which he
otherwise would not have made.

In re Will of Andrews, 261 S.E.2d 198, 199 (N.C.
1980).

Undue influence must be proved by the greater weight
of the evidence. Id. The Appellants must “carry their burden of presenting
specific evidence that [Testator’s] will was the result of ‘overpowering’ and
‘fraudulent influence’ exerted by [the Williams Children and/or Thad] which
overcame [Testator’s] will.” Estate of Whitaker, 547 S.E.2d 853, 858
(N.C. Ct. App. 2001).

There are several factors that the North
Carolina courts look to in determining whether undue influence was exerted over
the testator. In re Will of Andrews, supra. “The test for determining
the sufficiency of the evidence of undue influence is usually stated as follows:
(i)t is generally proved by a number of facts, each one of which, standing alone,
may have little weight, but taken collectively may satisfy a rational mind of
its existence.” Id. at 200. Analyzing the North Carolina factors one-by-one
it is apparent that summary judgment was proper:

(1)

Old age and physical and mental weakness. Appellants
presented evidence that Testator was an elderly man who occasionally showed
signs of physical and mental weakness.

(2)

The person signing the paper is in the home of the beneficiary
and subject to his constant association and supervision. Appellants contend
the Williams Children lived in the home of Testator. However, evidence that
a beneficiary lived with the Testator must be coupled with evidence of constant
association and supervision. Appellants presented no evidence that Testator
was subject to the Williams Children’s constant supervision or association and
admit that Testator was free to leave the house, drove himself to work everyday,
and freely associated with other friends, family members, and colleagues.

(3)

Others have little or no opportunity to see him. There
is no evidence to support this factor.

(4)

The will is different from and revokes a prior will.
Appellants presented evidence that the Williams Children were not included in
any of the estate plans previous to the 1996 plan and contended Testator intended
to treat his children equally. However, Testator had never treated his children
equally in previous estate plans. Beginning in 1981, Scott received a specific
bequest, which increased substantially in all of the subsequent revisions, including
the one executed two days before Testator’s death, which increased Scott’s trust
share from $500,000 to $750,000. Although the Williams Children were not included
in the previous wills, there was evidence that Mim had disinherited the Williams
Children, and that Testator changed his estate plan to make sure they were provided
for. Also, there was evidence that Testator did not approve of Mim’s marriage
to Neiman, and wanted to insure Mim’s bequest passed to her children, and not
to Neiman.

(5)

It is made in favor of one with whom there are no ties of
blood. This element is not applicable, as the Williams Children are the
grandchildren of the Testator.

(6)

It disinherits the natural objects of his bounty. This
element is also not applicable.

(7)

The beneficiary has procured its execution.
Appellants presented evidence that Thad arranged for the execution of the documents,
and was heavily involved in the entire process. However, the Appellants presented
no evidence that Thad, or the Williams Children, were present at the execution
of any of the documents, nor that they procured the execution. Also,
Thad is not a beneficiary of the estate plan.

Analyzing North Carolina jurisprudence, and applying
these factors in the light most favorable to the Appellants, there is no evidence
to make out a prima facie case of undue influence under North Carolina
law. [7] Appellants presented evidence of the first factor, “[b]ut
evidence of mental or physical condition standing alone is not evidence of undue
influence.” In re Ball’s Will, 33 S.E.2d 619, 621 (N.C. 1945). The
only other evidence Appellants presented was that the will was different from
prior wills. There is no specific evidence of an “overpowering” or “fraudulent
influence” exerted over Testator, therefore the summary judgment motion was
proper and we affirm the trial court’s ruling. Estate of Whitaker, supra.

B. Trust Res

Scott argues that the trust was not funded at its creation,
and therefore was not validly created. We disagree. There is sufficient evidence
that the trusts were funded. Testator expressed an intent to create a trust,
designated beneficiaries and a trustee, and funded the trust. "In order
to create an enforceable trust it is necessary that the donor or creator should
part with his interest in the property to the trustee by an actual conveyance
or transfer, and, where the creator has legal title, that such title should
pass to the trustee." Tyson v. Henry, 514 S.E.2d 564, 565 (N.C.
Ct. App. 1999). Under the Restatement (Second) of Trusts, “[i]f the
owner of property executes an instrument purporting to transfer to another in
trust such property as he may designate thereafter, the conveyance is incomplete
and no trust arises unless and until he designates and transfers the property.”
§26 cmt. e (1959) (emphasis added). There is evidence that a ten dollar bill
was attached to the trust documents when Testator executed the documents. “The
trust agreement obviously may precede the transfer of title, as well as occur
at the time of the transfer.” George Gleason Bogert, Trusts and Trustees,
§ 141, 10 (2d ed., West 1979).

Even if Testator did not fund the trust at the moment
the documents were signed, the trusts were funded as of March 21, 1997, one
year prior to Testator’s death, as evidenced by a partnership agreement. See,
e.g. Burbridge v. First Nat. Bank and Trust Co. of Oklahoma City,
415 P.2d 591 (OK 1965) (No property or assets were listed in the trust agreement
or attached thereto as exhibits. The trust did not become operative as to any
of the settlor’s assets when the trust agreement was drawn up, but only later
when property was specifically transferred and delivered to the trustee by the
settlor.) We therefore conclude that all of the required elements for the
formation of a trust were met.

CONCLUSION

We affirm the order of the circuit court judge
granting summary judgment on the will under South Carolina law.

We hold that North Carolina law applies to the issues surrounding
the trust documents. Under North Carolina law, Appellants presented no evidence
that would give rise to a genuine issue of material fact as to their undue influence
claim and Respondents are entitled to summary judgment as a matter of law.
Finally, we hold that the trust was validly funded.

[5] We note that Testator’s counsel served as President
of the American College of Trust and Estate Counsel.

[6] Donald S. Russell, Sr. continues to be referenced
as “Testator” for consistency, notwithstanding that we discuss the validity
of trust instruments.

[7] Following is an example of a
case, with facts far more favorable to a contestant than the one at hand,
in which it was held that a prima facie case was not presented. In
Matter of Will of Prince, 425 S.E.2d 711, 714 (N.C. Ct. App.
1993), the North Carolina Court of Appeals held that the evidence presented
was insufficient to warrant submission of the issue of undue influence to
a jury.

The caveator presented evidence that the testatrix was old and at times suffered
with memory loss; that the propounder, the testatrix's brother, assisted testatrix
with her affairs; that the propounder's former daughter-in-law made an appointment
for the testatrix with the attorney; and that the propounder drove the testatrix
to see her attorney and sat in the conference she had with her attorney. The
caveator also presented evidence that the testatrix did not make provisions
in her will for her son and her two grandchildren; that on occasions the testatrix
expressed to others that she was afraid of the propounder; and that the propounder
was a beneficiary under the will. In holding that such evidence was insufficient
to support an inference of undue influence, [the court] stated that the evidence
“fails ‘to support an inference that the will was the result of an overpowering
influence exerted by propounder of testatrix which overcame testatrix's free
will and substituted for it the wishes of propounder, so that testatrix executed
a will that she otherwise would not have executed.’”